Citation Nr: 1323302 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-10 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable disability rating for service-connected psoriasis of the head and legs with acne scarring of the face. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to January 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified during a hearing before a Veterans Law Judge in July 2010. A transcript of the hearing is of record. The Veteran was notified in December 2012 that the Veterans Law Judge who conducted the July 2010 Board hearing was no longer employed by the Board (due to retirement) and he has an opportunity to testify at another hearing. The Veteran was instructed that if he did not respond to this letter within 30 days, the Board would assume that he did not wish to have another hearing before a Veterans Law Judge currently employed by the Board. The Board has not received a response from the Veteran, and as such, it is presumed that he does not desire another hearing. The Board remanded this matter in December 2011 for further evidentiary development. The Appeals Management Center (AMC) continued the denial of the claim as reflected in the November 2012 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. During the course of this appeal, the RO granted the Veteran's service connection claims for pes planus of the right foot, right foot Achilles tendinopathy and right foot posterior tibial tendonitis in rating decisions dated in September 2012 and November 2012. As this is a full grant of the benefit sought on appeal, the Board concludes that this issue is no longer before the Board. FINDINGS OF FACT The preponderance of the evidence shows that the Veteran's service-connected psoriasis of the head and legs with acne scarring of the face affects less than 5 percent of the entire body and less than 5 percent of exposed areas, and does not require intermittent treatment with systemic therapy, such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a compensable disability rating for service-connected psoriasis of the head and legs with acne scarring of the face have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7816 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is appealing the initial disability rating assignment for psoriasis of the head and legs with acne scarring of the face. The April 2009 rating decision granted the Veteran's claim of entitlement to service connection and therefore, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in the April 2009 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2012). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The January 2009 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating disabilities of the spine and hallux valgus, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. Therefore, the Veteran was informed of what was needed not only to achieve the next-higher schedular ratings, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability on appeal. With respect to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, a VA examination report dated in April 2009, a VA opinion dated in October 2012, lay statements from the Veteran and a Board hearing transcript dated in July 2010. The April 2009 VA examination report reflects that the examiner obtained an oral history of the Veteran's skin disabilities and evaluated the Veteran in with respect to symptoms of psoriasis and acne scars. The examiner documented in detail the claimed symptoms. The Veteran's service-connected skin disability is cyclical or fluctuates in severity. Therefore, VA must offer an examination during an active stage of the disease. Ardison v. Brown, 6 Vet. App. 405, 408 (1994); Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (holding that 'it is the frequency and duration of the outbreaks and the appearance and virulence of them during the outbreaks that must be addressed."). The April 2009 VA examination was conducted during an active stage of the skin disorder. The Veteran testified in July 2010 that his skin disability at a minimum encompasses areas of his cheeks and his scalp and that it will flare-up in the cool months to include his legs and cleft of his buttocks. See Hearing Transcript at 14 and 26. The Board notes that the VA examiner in April 2009 did not review the Veteran's claims file as part of the examination. The Veteran has not asserted and the claims file does not show that evidence in the claims file would have affected the observations of the examiner. See Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003) (when reviewing the claims file would not affect the observations of an examiner, the failure to review it does not prejudice the claimant). The examiner was aware of the pertinent history of the Veteran's skin disabilities based on the Veteran's statements during the examination. Based on the foregoing, the examination is adequate for rating purposes. This issue was previously remanded in December 2011 to request that the Veteran fill out and sign a new authorization form to obtain outstanding private treatment records with respect to his psoriasis and to obtain a VA medical opinion (or a VA examination and opinion if deemed necessary by the clinician). The claims file contains a letter dated in December 2011 asking the Veteran to complete the enclosed authorization form so that VA may obtain his private treatment records or he can provide those records to VA. The Veteran did not respond to the letter. The record also contains a VA medical opinion dated in October 2012 that provides the pertinent information requested by the Board after a review of the record. Accordingly, the Board finds that there has been substantial compliance with the December 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the record presents no basis for further development to create any additional evidence to be considered in connection with the issues currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's service-connected psoriasis of the head and legs with acne scarring of the face is currently evaluated as noncompensable under Diagnostic Code 7816, which evaluates psoriasis. Under this diagnostic code, a 10 percent rating is warranted if at least 5 percent, but less than 20 percent, of the entire body is affected; at least 5 percent, but less than 20 percent, of the exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12 month period. A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected or systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12 month period. If more than 40 percent of the entire body or more than 40 percent of exposed areas are affected or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12 month period, a 60 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7816 (2012). The medical evidence of record shows that the Veteran's service-connected psoriasis of the head and legs with acne scarring of the face was characterized as affecting less than 1 percent of the Veteran's total body surface area and less than 5 percent of exposed areas affected. In addition, the preponderance of the evidence shows that the Veteran's skin disability has not been treated with systemic therapy such as corticosteroids other immunosuppressant drugs. The Board notes that the Veteran contends that his service-connected skin disability should be considered to be on or over 10 percent of his entire body and he desires a 10 percent disability rating. See June 2009 notice of disagreement and March 2010 substantive appeal. The Veteran does not assert that his service-connected skin disability covers more surface area of the body than described by the April 2009 VA examiner. He contends that the examiner incorrectly determined that the observed manifestations of the skin disability covered less than 1 percent of his entire body. The Board has carefully reviewed the evidence in the claims file to include the April 2009 VA examination and it has determined that the medical evidence of record does not reflect that the Veteran's service-connected skin disability encompasses 5 percent or more of the entire body or exposed area affected at any time during the appeal period. Accordingly, the Board concludes that the Veteran's service-connected psoriasis of the head and legs with acne scarring of the face does not more closely approximate a compensable disability rating under Diagnostic Code 7816. With respect to whether the Veteran's skin disability warrants a higher disability rating under other applicable diagnostic codes, Diagnostic Code 7816 provides that psoriasis can also be rated as disfigurement of the head, face, and neck under Diagnostic Code 7800 or for scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending on the predominant disability. A 10 percent disability rating is warranted where there is one characteristic of disfigurement under Diagnostic Code 7800 for scars of the head face or neck or disfigurement of the head, face, or neck and a 30 percent rating is for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The April 2009 VA examination reveals that there was minimal scarring of the face that is barely noticeable. The evidence of record shows that the Veteran does not have at least one characteristic of disfigurement of the head, face or neck, visible or palpable tissue loss or gross distortion or asymmetry of one feature. Thus, the Veteran is not entitled to a compensable disability rating for his service-connected skin disabilities under Diagnostic Code 7800. A 10 percent rating is warranted for scars, other than head, face, or neck, that are deep and nonlinear, when the area or areas encompass at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters) under Diagnostic Code 7801. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2012). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Note (1) (2012). Diagnostic Code 7802 provides that scars, other than the head, face or neck, that are superficial and nonlinear are assigned a 10 percent rating when the area is 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2012). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). Diagnostic Code 7805 provides that any disabling effect(s) that are no considered in a rating provided under diagnostic codes 7800-04 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2012). The preponderance of the evidence shows that the Veteran does not have any scars other than the head, face or neck. The scars on the face are not unstable or painful. Furthermore, the scars do not have any disabling effects. Based on the foregoing, the Board concludes that the Veteran is not entitled to a higher disability rating under Diagnostic Codes 7800-05. The Board has considered whether staged ratings are appropriate in this case. The evidence of record shows that the symptoms of psoriasis of the head and legs with acne scarring of the face have not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected psoriasis of the head and legs with acne scarring of the face is inadequate. A comparison between the level of severity and symptomatology of the Veteran's psoriasis of the head and legs with acne scarring of the face with the established criteria found in the rating schedule for psoriasis shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The evidence does not indicate that his psoriasis of the head and legs with acne scarring of the face has caused marked interference with employment that is not already contemplated in the rating criteria, necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. In conclusion, the Board notes that the benefit of the doubt is to be resolved in the veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, the Board finds that the preponderance of the evidence is against the claim and an assignment of a compensable disability rating for service-connected psoriasis of the head and legs with acne scarring of the face is not warranted. ORDER Entitlement to a compensable disability rating for service-connected psoriasis of the head and legs with acne scarring of the face is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs